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Redefining Federalism

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Combating Developer-Led Attacks on
Smart Growth and Environmental Protection

scales of justice Weighted Scales at ABA  

(p. A26)
Monday, July 26, 1999

When a lobbying behemoth such as the National Association of Home Builders (NAHB) loses a legislative battle, its lobbyists typically do not look to the American Bar Association for relief, but they appear to have done so at a recent "retreat" on the takings clause of the Fifth Amendment sponsored by the ABA's Section of State and Local Government Law.

In early August, the full ABA section will consider whether to adopt the retreat's "consensus" on takings law and submit it to the House of Delegates for endorsement. However, before approving the consensus--which reflects key portions of the NAHB's agenda--the section should reassess its merits, as well as the disturbing process by which it was achieved.

First, some background. The takings clause was originally understood to require compensation only for physical expropriations of property, but, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), the Supreme Court ruled that a land use restriction may constitute a taking when it "goes too far" and has "very nearly the same effect" as an expropriation.

Over the years, the court carefully developed reasonable "ripeness" rules that prevent developers from improperly escalating every land use dispute into a federal takings lawsuit. Thus, under Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), and successor cases, a developer must ripen its takings claim by obtaining a final decision from local officials regarding how the land may be used before suing in federal court.

These ripeness rules make sense because a federal court cannot determine whether a land use regulation "goes too far" under Mahon until it knows how far the regulation goes. The Supreme Court also recognizes that land use issues are quintessentially local issues, land use agencies are flexible institutions and developers should work with local planners before running to federal court, lest they turn the federal judiciary into a board of zoning appeals.

Failed push

In the 105th Congress, the NAHB pushed hard for radical changes to these ripeness requirements. H.R. 1534--a bill written by NAHB lobbyists--is designed to undo Williamson and allow developers to circumvent local procedures for variances, waivers and the like by deeming takings claims ripe for federal court review far earlier in the planning process. The NAHB bill (recently reintroduced as H.R. 2372) would give developers a huge new club in their negotiations with community officials: the threat of early, expensive federal litigation.

The bill died last year as a result of intense, bipartisan opposition by virtually every major organization of state and local governments, including the National Governors Association, the National League of Cities, the Conference of State Supreme Court Justices, and more than 40 state attorneys general. The federal Judicial Conference and many organizations also opposed H.R. 1534.

Among the many arguments against the bill is the commonsense notion that any problems with local land use procedures should be addressed at the local level, not by constitutionalizing the NAHB's one-size-fits-all mandate at the expense of communities across the country.

The consensus achieved at the ABA retreat regarding these controversial issues does not represent the views of the legal profession as a whole. Groups opposed to the NAHB bill were not invited, whereas the NAHB was represented by, among others, its chief outside lobbyist and the principal academic advocate for the bill. The first handout distributed at the retreat was a copy of the proposed bill, together with supportive literature.

Not surprisingly, the attendees approved a definition of ripeness similar to the one advocated by the NAHB bill that would allow developers to sidestep important local procedures and impose unprecedented burdens on local governments. Also ratified were proposed changes to substantive takings jurisprudence that favor developers.

Now, the NAHB lobbyists hope that the ABA's imprimatur will revive their failing efforts in Congress and the courts. Quite apart from the principles involved, however, there is a real question as to what the ABA could gain by supporting the developers' position on controversial propositions that would severely tilt the field against local communities nationwide. The answer is nothing.

Mr. Dowling is chief counsel at Washington, D.C.'s Community Rights Counsel.

  • For the Minutes of the ABA Council Meeting, rejecting the Retreat Report, click here.

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